Mane v The Queen - [2017] NZCA 543

IN THE COURT OF APPEAL OF NEW ZEALAND

CA509/2017
[2017] NZCA 543

BETWEEN	DRE KANE MANE Appellant
AND	THE QUEEN Respondent

Hearing:	6 November 2017
Court:	Gilbert, Lang and Ellis JJ
Counsel:	Q Duff for Appellant M L Wong for Respondent
Judgment:	24 November 2017 at 3 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
B The concurrent sentences of six years imprisonment on the charges of aggravated burglary and possession of methamphetamine for supply are set aside.
CA sentence of three years four months imprisonment is substituted on the charge of aggravated burglary and a cumulative sentence of two years eight months is substituted on the charge of possession of methamphetamine for supply.

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REASONS OF THE COURT

(Given by Lang J)

Mr Mane pleaded guilty in the District Court at Papakura to a charge of aggravated burglary and a charge of being in possession of methamphetamine for the purpose of supply. On 8 May 2017 Judge Andrée Wiltens sentenced Mr Mane to concurrent sentences of six years imprisonment on each charge.[1]
[1]R v Mani [2017] NZDC 9403 at [11].
Mr Mane appeals against sentence on the basis that the Judge adopted starting points that were too high on each charge and failed to provide adequate discounts for mitigating factors. These errors resulted in an end sentence that was manifestly excessive.

The charges

The charge of aggravated burglary was laid as a result of an incident that occurred at about 9 pm on the evening of 30 November 2015. The summary of facts that Mr Mane accepted for sentencing purposes records that he and three others met up on that evening and decided to pay a visit to the victim. They were apparently under the false impression that he owed them drugs. The defendants then assembled some weapons, including a baseball bat. They then drove to the victim’s home. Mr Mane was in possession of the baseball bat.
When the victim opened the door, one of Mr Mane’s co-defendants confronted him and told him to step outside. The victim then retreated inside the address but Mr Mane and his associates followed him in. Once inside, one of Mr Mane’s associates punched the victim in the nose, causing it to bleed. Mr Mane then swung his baseball bat at another occupant of the address, striking him twice on the upper arm.
The confrontation caused the occupants of the address to attempt to hide from Mr Mane and his associates. The defendants then made one of the occupants take them upstairs to the victim’s bedroom. They searched the room seeking items to steal, and eventually left the address with the victim’s wallet.
The charge of being in possession of methamphetamine for supply was laid as a result of a search that the police carried out of Mr Mane’s address on the evening of 13 July 2016. When the police entered the address, they observed a set of scales sitting on a coffee table. Sitting on the scales…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mane v The Queen

Details

AGLC: Mane v The Queen [2017] NZCA 543
Case: [2017] NZCA 543
Decision Date: 24 November 2017 at 3 pm

CaseChat Overview and Summary

In the appeal of Mane v The Queen, the appellant Dre Kane Mane challenges his sentence imposed by the District Court at Papakura. Mr Mane pleaded guilty to charges of aggravated burglary and possession of methamphetamine for the purpose of supply. He appeals against his sentence on the basis that the starting points adopted by the sentencing judge were too high and that insufficient discounts were applied for mitigating factors. The Court of Appeal of New Zealand was required to decide whether the sentence imposed by the District Court was manifestly excessive and whether the concurrent sentences were appropriate.

The Court of Appeal found that the sentencing judge was correct to impose cumulative sentences for the two charges, as they were different in kind and unconnected in time, place, or circumstance. The Court did not consider it necessary to address each point made by Mr Mane's counsel, but rather focused on whether the effective end sentence of six years imprisonment was within the available range, having regard to totality principles. The Court found that a starting point of around five years imprisonment was within the available range for the aggravated burglary charge, and a starting point of around four to four and a half years imprisonment was appropriate for the methamphetamine charge. The Court also found that the level of the reduction applied by the Judge to reflect totality principles brought the end sentence down to a level that was within the available range to reflect the seriousness of both forms of offending.

The Court of Appeal allowed the appeal against sentence and set aside the concurrent sentences of six years imprisonment on both charges. In their place, the Court substituted a sentence of three years four months imprisonment on the charge of aggravated burglary and imposed a cumulative sentence of two years eight months imprisonment on the charge of possession of methamphetamine for supply. The Court found that concurrent sentences of six years imprisonment were not appropriate, as neither offence justified an end sentence of that length. The Court also considered that the sentences as they currently stood may operate unfairly to Mr Mane's detriment if the courts are required to have regard to his criminal history in the future.

The final orders of the Court of Appeal were to set aside the concurrent sentences of six years imprisonment imposed by the District Court and substitute a sentence of three years four months imprisonment on the charge of aggravated burglary, and a cumulative sentence of two years eight months imprisonment on the charge of possession of methamphetamine for supply.

Orders